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The Canara Motor and General Insurance Co. Ltd. Vs. Abdul Hamid Khan Sahab and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported inII(1984)ACC364; 1984MhLJ733
AppellantThe Canara Motor and General Insurance Co. Ltd.
RespondentAbdul Hamid Khan Sahab and anr.
Excerpt:
.....an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - it no doubt assumes importance when a taxi driver is plying for hire and makes for better facilities for the passenger. 11. a similar technical plea was raised without success in (rendlesham v......he stands or falls on the finding, as to whether the person driving held a licence to 'drive the motor vehicle'.4. the motor vehicles act, 1939 ('the act') divides the motor vehicles into 'contract carriages' under section 2(3), 'goods vehicles' under section 2(8), 'heavy goods vehicles' under section 2(9), 'heavy passenger motor vehicles' under section 2(9a), 'light motor vehicles' under section 2(13), and 'motor cab' under section 2(15). under sub-section (25) of section 2 of the act, 'public service vehicle' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage. sub-section (33) of section 2 of the act defines 'transport vehicle' to mean a public service vehicle or a goods.....
Judgment:

V.V. Vaze, J.

1. Can an insurer defeat a claim arising under a motor accident on the ground that the driver who was driving a taxi, though holding a valid licence, did not have an endorsement on it enabling him to drive a taxi?.

2. The victim Pesh Imam of Macca Masjid of Shah Taj Ammul Hussain Shah Trust Baba Dargah Trust, 48, met with a fatal motor accident as a result of collision with Taxi No. MRR 2560 driven by one Ranjitsingh Thakur. The dependents of the deceased Pesh Imam filed an Application No. 216 of 1972 before the Additional Motor Accidents Claims Tribunal for Greater Bombay, for damages, showing Rajmal, the taxi owner, and the Insurance Company as the opposite parties. The Tribunal found against the insurer and ordered payment of Rs. 14,800/- as compensation to the heirs of the deceased. The insurer appeals.

3. The insurer has not disputed the factum of negligence and he stands or falls on the finding, as to whether the person driving held a licence to 'drive the motor vehicle'.

4. The Motor Vehicles Act, 1939 ('the Act') divides the motor vehicles into 'contract carriages' under Section 2(3), 'goods vehicles' under Section 2(8), 'heavy goods vehicles' under Section 2(9), 'heavy passenger motor vehicles' under Section 2(9A), 'light motor vehicles' under Section 2(13), and 'motor cab' under Section 2(15). Under Sub-section (25) of Section 2 of the Act, 'public service vehicle' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage. Sub-section (33) of Section 2 of the Act defines 'transport vehicle' to mean a public service vehicle or a goods vehicle.

5. It is a common ground that the vehicle in question viz MRR 2560 was a Fiat Car which was being used as a taxi, and consequently would be a public service vehicle. It also falls under the comprehensive definition of a transport vehicle.

6. Section 3 of the Act prohibits a person from driving a motor vehicle in a public place unless 'he holds an effective driving licence'. The owner is charged Under Section 5 with the responsibility of seeing to it that no one drives the motor vehicle who does not satisfy the provisions of the Act.

7. Chapter II of the Bombay Motor Vehicle Rules, 1959 is devoted to the setting up of the licensing machinery. Rule 4 prohibits a person from driving a public service vehicle unless an authorisation in Form D to the Act has been obtained. Form D in the First Schedule to the Act prescribes a form of a driving licence giving the personal information of the driver. At the bottom of the form, an authorisation to drive a transport vehicle is to be signed by the prescribed authority. The authorisation reads that so long as the licence is valid and is renewed from time to time the holder is authorised to drive a transport vehicle.

8. Rule 4 gives the details of the manner in which an authorisation to drive a public service vehicle is to be granted. An applicant has to apply under Form L.P.S.A. along with a copy of his driving licence. The licencing authority under Clause 4 has to satisfy itself that the applicant had atleast two years experience in driving a motor vehicle other than a motor cycle. This period can be reduced by the State Government. The licensing authority may make enquiries about the character, antecedents of the applicant and may also put him to a fresh driving test. If the applicant intends to drive a motor cab in Bombay, Poona or Nagpur, the licencing authority has to satisfy itself that the applicant has adequate knowledge of the topography of that city and working knowledge of Marathi and Hindi.

9. under Section 96(2)(b)(ii), a condition excluding driving by any person 'who is not duly licenced', is one of the legal grounds of defence available to an insurer. This provision has not been verbatim incorporated into the policy. The insurer, instead, insists that the person driving should have held a licence to drive the motor vehicle. The insurer argues that the expression 'a licence to drive the motor vehicle' implies a licence to drive a public service vehicle i.e. a motor cab, which, so the argument proceeds the driver Thakur in the instant case did not have, in view of the want of endorsement on the licence.

10. It seems to me that the expression 'held a licence to drive the motor vehicle' appearing in the policy refers more to the type of vehicle rather than the mode of its user. The vehicle in question was a Fiat car which was a light motor vehicle and Thakur did possess a valid licence for driving a light motor vehicle. In addition, he also had more than two years driving experience which experience would have entitled him to obtain the required endorsement on a licence as a matter of routine. No doubt, he has broken one of the prescriptions of the Act that he shall not drive a motor cab unless he holds an endorsement on the licence. So far as the driving abilities are concerned, it. matters little whether a driver has adequate knowledge of Hindi or Marathi or about the topography of the city where he is driving the vehicle. It no doubt assumes importance when a taxi driver is plying for hire and makes for better facilities for the passenger.

11. A similar technical plea was raised without success in (Rendlesham v. Dunne : Pennine Insurance Company Ltd., Third party), 1 Lloyd's Report, 192, where the insurer tried to defeat the claim because the driver who was a holder of a provisional licence had not complied with the condition of the licence of driving with a licensed driver by his side. In (Houghton v. Trafalgar Insurance Co. Ltd.) (1954) 1 Q.B. 247, dismissing arguments arising out of ambiguities in the policy document, it was observed that if there is any ambiguity, the ambiguity will be resolved in favour of the assured. Likewise here if the intention of the insurer was to exclude any claim when the vehicle at the time of accident was being driven by a person who did not hold a licence with all the required endorsements as per the Act or the Rules made thereunder, he could have said so in plain and unambiguous words in the said policy itself.

12. To conclude, I find that the learned Member of the Motor Accidents Claims Tribunal, was right in allowing the claim as he did. The Appeal, therefore, fails and is dismissed with costs.


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